Abstract
In Britain today, “courts” make only a tiny minority of all official decisions. Legal research is however almost exclusively concerned with the judicial process. The purpose of this paper is to discover what principles, if any, do or ought to govern the allocation of “judicial” and “administrative” decision-making. Why are some decisions “hived off” to administrative tribunals, commissions, inquiries, ministries, and so on? Why are others dealt with by the courts in the ‘judicial’ system? What are the relative merits of courts, commissions and computers as decision-makers?
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C. Reich, The New Property, 73 Yale L.J. 733 (1964);
Midnight Welfare Searches and the Social Security Act. 72 Yale L.J. 1347 (1963);
Individual Rights and Social Welfare; The Emerging Issues, 74 Yale L.J. 1245 (1965);
The Law of the Planned Society, 75 Yale L.J. 1227 (1966).
See e.g. J. Handler, Controlling Official Behavior in Welfare Administration, 54 Calif. L. Rev. 479 (1966).
K. Davis, Discretionary Justice (1969).
See J. Jowell, The Legal Control of Administrative Discretion, Public Law, Autumn 1973, p. 178.
E.g. by P. Nonet, Administrative Justice (1969);
P. Selznick, Law, Society and Industrial Justice (1969).
L. Fuller, Collective Bargaining and the Arbitrator, Wis. L. Rev. 3 (1963). See also L. Fuller, The Forms and Limits of Adjudication (unpubl. paper);
H. Hart and A. Sacks, The Legal Process at. 155 ff. (tent. ed., 1958 ).
F. Hayek, The Road to Serfdom (1944);
A.V. Dicey, The Law of the Constitution (1885);
J. Dickinson, Administrative Justice and the Supremacy of Law (1927).
Neither the terms ‘improper’ and ‘irrational’ are of course possible of objective determination. In my view the arbitrary decision must be both ‘improper’ and ‘irrational’. See J. Jowell, op. cit. supra, at 186.
L. Friedman, On Legalistic Reasoning — A Footnote to Weber, Wis. L. Rev. 148 (1966): “A law appears normally as naked fiat, as plain and uncompromising as the Ten Commandments”.
This point about “symbolic reassurance” is made by Murray Edelman in The Symbolic Uses of Politics (1964).
Fuller, The Forms and Limits of Adjudication, supra, at 13.
See H. Hart and A. Sacks, supra, at 155.
See Nonet’s account of early stages in the history of the California Industrial Accident Commission, where a claimant was seen as a “whole man”, in the context of his work record, to judge whether he possessed a “reliable character” and to provide for his problems, family adjustment, physical and mental health, etc. Nonet, Administrative Justice, at 250–60 (1969).
J.Q. Wilson, Varieties of Politice Behavior, at 65–66 (1968).
See Fuller, The Morality of Law, at 64 (1964).
Murray v. Dunn (1907), A.C., 283.
See F. James, The Qualities of the Reasonable Man in Negligence Cases, 16, Missouri L. Rev. 1 (1951).
K.C. Davis has recently defined discretion as follows: “A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction”. K.C. Davis, Discretionary Justice, at 4 (1969). This difinition views discretion as a matter of degree, and not as an activity distinct from law-application’, and accords with the view of discretion put forward here. Others who view discretion in this way are J. Griffith and H. Street, Principles of Administrative Law, chapter IV (1966); and G. Ganz, Allocation of Decision-Making Functions, Public L., Autumn and Winter 1972. Contra, see R. Dworkin, The Model of Rules, 35 U. of Chi. L. Rev. 14 (1967), who considers that a judge does not have discretion when he is bound to reach an understanding of what his orders or the rules require, and to act on that understanding.
It should be pointed out too that we are not referring here to the discretion of any given body (tribunal, ministry, etc.) but to discretion exercised at any point of time with respect to a particular task. For example, an organisation might start out with high discretion to perform a particular task and may then proceed to impose a limit upon its discretion by abiding by past decisions. Hart and Sacks refer to this as “discretion on a one-way ratchet”. H. Hart and A. Sacks, The Legal Process, at 160–180 (Tent. ed. 1958 ).
This particular form of conciliation differs from the usual form of mediation, which is categorised here as a purely administrative function, where the mediator only supervises a negotiated settlement, and the parties themselves are authorised to set its terms. See T. Eckhoff, The Mediator, The Judge and the Administrator in Conflict-Resolution, 10 Acta Sociologica, p. 158 (1966).
The distinction between managerial and dispute-settlement tasks is similar to that adopted by Selznick between ‘administration’, the job of which is to “get the work of society done” and ‘adjudication’ the primary function of which is to “discover the legal coordinates of a particular situation”. Selznick, supra, at 16.
See S. Simon, S. Smithburg and V. Thompson, Public Administration, at 428 (1950).
E. Freund, Administrative Powers over Persons and Property, ch. 1 (1928).
See M. Myerson and E. Banfield, Politics, Planning and the Public Interest, 312–14 (1955); and J.Q. Wilson, An Overview of Theories of Planned Change, in Morris, ed. Centrally Planned Change, at 13 (1964).
For a detailed study of the evolution and workings of the English Act see A. Lester and G. Bindman, Race and Law (1972).
For a legal-sociological study of the MCAD’s early history, see L. Mayhew, Law and Equal Opportunity (1968).
D. Henderson, Conciliation and Japanese Law, at 4 (1965).
Id. at 5 (emphasis in original). See also J. Cohen, Chinese Mediation on the Eve of Modernization, 54 Calif. L. Rev. 1201, 1224–5 (1966).
Further details will appear in J. Jowell, Law and Bureaucracy (Dunellen Press, forthcoming). The number of cases reported is 82 (37 for Commissioner A, 24 for Commissioner B, 21 for Commissioner C). These were all the 1965 cases alleging discrimination in housing and employment.
Much of the early history of the Commission is well documented in L. Mayhew, supra.
Mass. L. Q. 11, (1945).
Memorandum by Charles P. Curtis, Jr., To the Legislative Commission on State Administration, op. cit. supra, at 2 (emphasis added). Similar arguments were employed to overcome opposition to proposed anti-discrimination legislation in England. E.g. “… much of the restance should disappear when it becomes generally understood that legislation doesn’t mean that every act of discrimination will be treated as a ciminal offence — but that the law will simply be used as an ultimate sanction if the machinery of conciliation and persuasion does’t work”. The Observer, Sunday 23 April 1967, p. 12, col. 1. See generally, A. Lester and G. Bindman, supra.
Undated and unidentified editorial in the Henry L. Shuttuck Collection, Littauer Library, Harvard.
Commonwealth of Mass., Fair Employment Practices Commission, Annual Report, December 1946, p. 1.
Mayhew, supra, at 248.
Ibid. at 91–100.
Ibid. at 249.
Ibid.
Commissioner A was one of the original appointees to the Commission in 1946. By habit, or inclination, he had retained his old techniques and approach. Commissioner C had recently been appointed, and was pioneering a departure from the then-dominant approach of Commissioner B. The following year Commissioner B was replaced by a Commissioner following the “equal opportunity” approach.
W. Leys, Ethics and Administrative Descretion, 3 Pub. Admin. Rev., at 14 (1943).
See H.L.A. Hart on the two handicaps to advance regulation of human conduct — relative ignorance of fact, and relative indeterminancy of aim, H.L.A. Hart, The Concept of Law, at 125 (1969). See also H. Simon’s discussion on the limits of human rationality in decision, H. Simon, Administrative Behavior, ch. V (1945), and the discussion of the “cognitive limits of rationality” in J. March and H. Simon, Organisations, ch. 6 (1958).
J.Q. Wilson, Varieties of Police Behavior, ch. 3 (1968). See also A. Downs, Inside Bureaucracy, ch. 3 (1967).
Ibid. at 86.
See V. Thompson, supra, at 14–18.
P. Blau, The Dynamics of Bureaucracy, at 241 (1955).
See e.g. R. Merton, Bureaucratic Structure and Personality, in R. Merton (ed.) Reader in Bureaucracy (1952). Nonet’s study of California Industrial Accident Commission shows a change in Approach over the years. P. Nonet, Administrative Justice (1969). See also M. Bernstein, Regulating Business by Independent Commission (1955) for an account of the “life cycle” of federal regulatory commissions.
J. Handler, op. cit. supra.
For a fuller account see J. Jowell, op. cit. supra, 217–19 (1973).
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Jowell, J. (1976). Judicial Decision-Making and Administrative Tasks. In: Friedman, L.M., Rehbinder, M. (eds) Zur Soziologie des Gerichtsverfahrens (Sociology of the Judicial Process). Jahrbuch für Rechtssoziologie und Rechtstheorie, vol 4. VS Verlag für Sozialwissenschaften, Wiesbaden. https://doi.org/10.1007/978-3-322-96982-8_11
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